Dr Frances D’Souza’s Submission to the Security Bureau

THE DEPARTURE OF THE PROPOSED ARTICLE 23 LEGISLATION FROM THE STANDARDS SET OUT IN THE JOHANNESBURG PRINCIPLES

1. PREAMBLE

At a meeting with the Secretary for Security, Ms Regina Ip, this consultant was asked to set out the main areas in which the proposed legislation for a national security law, as set out in the Consultation Document[i], departs from the Johannesburg Principles.

It is likely that the Hong Kong Government will discount the objections set out below on the grounds that the actual wording of the proposed legislation will iron out any ambiguities and show a close conformity with the international standards as set out in the International Covenant on Civil and Political Rights (ICCPR). This may well be the case. However, since the Government has so far refused to issue a White Bill and the Blue Bill is not yet published, comments are necessarily based on the Consultation Document. Several Legislative Council Members[ii] assured the Hong Kong Journalists Association that a White Bill would be redundant at this stage since the wording for the proposed Bill is already in the Consultation Document.

It is the view of this consultant, that the proposed legislation is, in fact, redundant. Existing legislation, notably the Official Secrets, Crimes, Criminal Procedure, Public Order, and Societies Ordinances (amongst others), all provide explicit penalties for any actions against the state that threaten national security. However, the Government has stated that it is bound under Article 23 of the Basic Law to enact National Security legislation and that five years into the new administration is an appropriate time to introduce such legislation.

Given that a new law is inevitable, it is incumbent on those organisations, which protect human rights freedoms, to ensure the narrowest possible restrictions on individual freedoms and the least possible ambiguity in the interpretation of the law. These concerns arise from the fact that national security laws are, in all jurisdictions, the most frequently abused and/or misused to protect non-legitimate national security interests such as criticism of, or embarrassment to, the government.

The Johannesburg Principles agreed in 1995 and published in 1996 have been widely disseminated and accepted as appropriate standards to protect fundamental freedoms while accepting the need for national security laws.[iii] They were developed to curtail the violations of the fundamental right to freedom of expression in the name of national security. Furthermore, it was evident that prosecutions under national security laws were necessarily affected by the prevailing political climate, thus making offences subjective. Any margin of appreciation or ambiguities in the interpretation of national security laws were, and are, regularly exploited for political purposes.

2. MAJOR CONCERNS

The detailed objections to the proposed legislation on Proscription, Treason, Secession, Subversion, Sedition and Theft of State Secrets have been set out elsewhere[iv]. The intention here is to indicate the most obvious discrepancies between the proposed legislation and the Johannesburg Principles.

(i) Proscription

The most serious threat to fundamental freedoms is contained in Chapter 7 of the Consultation Document, ‘Foreign Political Organizations’. The proposed legislation appears to be based on mainland definitions of what constitutes a security threat. These definitions are broad, punitive and certainly do not conform to article 19 of the ICCPR, which specifically refers to freedom of expression, assembly and association. The proposed legislation also violates freedom of association guaranteed by the Basic Law since it penalises access to and publication of a wide range of information as defined in Mainland laws.

Thus Chapter 7, over and above the restrictions set out in the Societies Ordinance, allows the Secretary for Security to proscribe an organization if it is

“..affiliated with a Mainland organization which has been proscribed in the Mainland by the Central Authorities, in accordance with national law on the ground that it endangers national security.

In addition, it should be possible to prohibit the operation of an organization that has a connection with a proscribed organization.”

Connection is broadly defined to encompass financial contributions, financial sponsorship or financial support of any kind; affiliation; determination of the association’s policies by a proscribed organization; or vice versa; direction, dictation, control or participation in the association’s decision making process by a proscribed organization, or vice versa.

Proscription must be based on evidence of affiliation and a reasonable belief on the part of the Secretary for Security that national security or public order or public safety is threatened.

The Johannesburg Principles state in Principle 1.3 that any restrictions on freedom of expression or information (of which association is necessarily a part) must pose a serious threat to a legitimate national security interest; be the least restrictive means possible to protect that interest; be compatible with democratic principles.

However, the Mainland definitions of legitimate national security interest include actions which are contrary to the interests of the government, information on the economic state of the country, health statistics, for example, the numbers of AIDS/HIV sufferers. All these topics are firmly within the category of public interest and therefore protected under international law.

Proscription of an organization defined as threatening national security as above is the most, not the least, restrictive means of protecting any interest.

Proscription based on the above definitions is incompatible with democratic principles.

Johannesburg Principle 2. Legitimate National Security Interest. The Mainland definitions of national security interests are much broader (see above) than those set out in this Principle and, as such, are non-legitimate.

Johannesburg Principle 6. Expression that may Threaten National Security. Given the reliance on the Mainland definitions of threat to national security interests, there is no longer any onus on the Hong Kong Government to demonstrate any of the requirements of this Principle. Thus, proceedings to ban a Hong Kong organisation may commence if it is in any way connected to a Mainland organization already the subject of proscription. The said HK organization need not threaten imminent violence, be likely to threaten imminent violence or commit actions that have a direct and immediate connection with the occurrence of violence. It would, under the proposed legislation, be sufficient for the HK organization to be found guilty, if sending donations to a Mainland research unit that has published adverse health statistics and, as a result, has been banned in the Mainland.

Principle 7 Protected Expression. Mainland definitions of threats to national security breach the four categories of protected expression enumerated in this Principle. Namely, peaceful political advocacy, criticism of government policy and practice, any objections based on religious beliefs or conscience to government laws, exposure of government wrongdoing and/or violations of international human rights law.

Principles 11—18 refer to the public interest and the free access to information. It is clear from the proposed legislation set out in Chapter 7 of the Consultation Document that all these Principles will undoubtedly be breached. For example, Principle 13 Public Interest in Disclosure, is not a consideration under Mainland law. By definition, Principle 17 Information in the Public Domain is breached since publication of prohibited information in the Mainland results in proscription which may in turn lead to proscription of the connected Hong Kong organization, regardless of whether the information it disseminates by whatever means is already in the public domain. Thus, to provide one obvious example: a Hong Kong newspaper that merely publishes ‘forbidden information’ such as the results of a Mainland survey on religious affiliation for which it is subsequently banned, is itself liable to proscription by the Hong Kong authorities.

Principle 15 General Rule on Disclosure of Secret Information refers to the international acceptance that no one (and, it follows, no organization) should be punished for revealing information if the public interest in having the information outweighs the harm from disclosure. This Principle is also breached.

Many subsequent concerns about the proposals set out in the Consultation Document follow on from Chapter 7 which, to this consultant, appears to be at the heart of the proposed legislation and affects all other clauses.

(ii) Secession

The proposed wording, set out in Chapter 3 of the Consultation Document, for this new offence is vague and ambiguous. For example, it refers to “….resisting the CPG in its exercise of sovereignty over a part of China, by levying war, use of force, threat of force or by other serious unlawful means…..”

Nowhere in the text are the terms ‘resist’, ‘levyingwar’, or ‘seriousunlawfulmeans’ properly defined.The danger with the over broad use of these terms is that they can mean what the government of the day wishes them to mean. It could include, for example, peaceful demonstrations if those demonstrations occurred outside a military establishment. It may well include the peaceful advocacy of avoidance of military service or of conscientious objection. Resistance, as Ghandhi demonstrated, can be peaceful even when confronting a government about an unpopular or possibly illegal action. A Hong Kong newspaper article exhorting greater economic relations between Taiwan and a foreign country might be interpreted as a ‘threat of force’ and punishable.

The new offence of Secession predominantly infringes Principles 1.3, 2 and 5-8.

(iii) Sedition

This newly expanded offence is set out in Chapter 4. It is unfortunate that the Hong Kong Government has chosen to depart from the general trend in most developed democracies, which is to abolish the crime of sedition. The Consultation Document quotes the UK Law Commission and Law Reform Commission of Canada to support its retention of sedition and the creation of the new offences of seditious publications and possession of seditious publications.[v] Moreover, the crime of sedition is to be extended to everyone voluntarily in Hong Kong and all permanent residents wherever they might be. It is worth noting that both the law reform bodies cited above have recommended that sedition offences be abolished as outmoded and an obstacle to freedom of expression.

The Consultation Document defends the Government’s decision to include and extend the crime of sedition by arguing that speech can be incitement as can publications and therefore a threat to national security. We have already seen that incitement is penalised under several existing Ordinances and is repeatedly proscribed under other sections of Article 23. For example, the existing Crimes Ordinance already outlaws seditious acts. Chapter 4 is a clear case of over legislation in order to ensure that no gaps exist in the Government’s legal power to suppress any dissent, whether peaceful of not.

“…we consider it necessary to underscore the seriousness of such acts by codifying these incitement offences in the context of sedition. Similarly, the overall stability of the state and that of the HKSAR are vital to the security of the state and the implementation of the ‘one country two systems’ principle, and merit protection by specific provisions. Thus, we propose to provide that inciting others

(a) to commit the substantive offence of treason, secession or subversion; or
(b) to cause violence or publilc disorder which seriously endangers the stability of the state or the HKSAR,

amounts to sedition.

While the safeguards contained in the Crimes Ordinance will be retained, the penalties for sedition are greatly increased and, in fact, are harsher than Mainland laws on incitement to secession and subversion. This breaches Principle 24.

The definitions of terms such as ‘sedition’ itself, ‘incitement’, ‘serious unlawfulmeans’, ‘public disorder which seriously endangers the stability of the state or the HK SAR’ and ‘seditious documents’ are worryingly vague, open to over broad interpretation and go beyond what is required under Article 23. Possession of a seditious document in no way fulfils the requirement that there be a clear and present danger that such possession will lead to the likelihood or occurrence of violence. Indeed it is probable that most households in Hong Kong have a ‘seditious’ document on their premises if the above definitions are used. This section of the Consultation Document breaches many of the Johannesburg Principles but particularly Principles 1 – 2, 5, 6 and 7.

One clear consequence of enactment of this provision would be severely to curtail freedom of information and the free flow of information, both requirements of the Basic Law, the ICCPR and Principles 13 and 14. The lack of any precise and narrow definitions in the Consultation Document on the terms contained within this chapter are especially threatening to the media because infringement of this provision, such as possession of a seditious document, could be committed unknowingly.

(iv) Subversion

Chapter 5 refers to the newly introduced offence of Subversion. Given that there are already adequate provisions in the various Ordinances to prohibit intimidation or any action intended or likely to overthrow the PRC Government, Chapter 5 should be considered as over-legislation and unnecessary. It not only adds a new offence but, importantly, considerably broadens the category of potential offenders. This proposal particularly affects freedom of expression because it is not clear what kind of expression will henceforth be punished. For example

“It is wrong in principle that someone can be found guilty of the offence (of subversion) by chanting at Victoria Park that Taiwan should strengthen its military force to liberate the Mainland, even when it is obvious that such a threat has no impact on the stability or the security of the government at all.” (Johannes Chen, The Article 23 Concern Group)

No distinction is made between advocacy and incitement.[vi] Thus “intimidation” could well fall within the category of protected expression. Principle 7 (a & b).

The “threat of force” is prohibited but there is no reference to any such threat being imminent or even likely to incite violence thus contravening Principle 6

(v) Theft of State Secrets

The provisions are set out in Chapter 6 of the Consultation Document. The existing Official Secrets Ordinance is to be retained and a new class of protected information to be introduced as well as a new offence of ‘Unauthorised and Damaging Disclosure of Protected Information’. It is unclear what defines ‘protected information’ and there are no safeguards against the ‘interests’ to be protected. These interests may be defined by Mainland concepts and laws, which are highly restrictive and not in accordance with the Basic Law, ICCPR or the Johannesburg Principles.

Media freedom is particularly threatened under these provisions. It will, when legislation is in place, be a crime to report on relations between the Central Authorities and Hong Kong. Henceforth, the question of the origin of information rather than its content will determine whether or not a crime has been committed. The inferences for the media are obvious. First, it is often the case that the precise origin of information is impossible to determine. Journalists rely on a number of different sources, experience, judgement and confidential information for stories. If they are unable to disclose a source either because of confidentiality or genuine lack of knowledge about its origin they could become liable for prosecution. This will exercise a major chilling effect on reportage.

There will be no public interest or prior publication defence. Since there are no active plans[vii] in HKSAR

” to adopt appropriate measures to give effect to the right to obtain information“, such as a Freedom of Information Act or Whistle Blowing legislation, Principles 13-15 are breached.

In brief, the proposed law will create a blanket category of forbidden information without having to demonstrate that publication of such information would have a deleterious effect on national security. This is a grave infringement of the Basic Law and the ICCPR. There are no adequate safeguards against abuse, because mainland concepts of national security interests may not be reviewable in the Hong Kong Courts, nor evidence that only a legitimate national security interest is at risk. The provisions are highly restrictive means of protecting any interest. The wide category of ‘Relations’ between the PRC and the HKSAR cannot be ring fenced as a legitimate national security threat. (Principles 1,2,5,6,7,8,11,12) There is no provision for exemption based on the content of the information (Principle 7, Protected Information). The broad prohibition on disclosure of a category of information and the penalties it carries, precludes public interest and confidentiality of sources and is thus disproportionate. (Principles 13,16,17,18 and 24). It also disregards the almost universal ban on Prior Censorship (Principle 23) upheld in international courts.

3. OTHER CONCERNS

It is likely that any challenge to the implementation of Article 23 in the future will be referred not to a court but to the Standing Committee of the National People’s Congress, a non-independent, non-legal, political body, which has the authority to change the interpretation of the law and thereby introduce new legal concepts. This infringes Principles 20 General Rule of Law Protections, 21 Remedies, and 22 Right to Trial by an Independent Tribunal.

It is urged that a definition of what constitutes national security under Hong Kong Law be included in any Bill. The Secretary for Security and the Deputy Solicitor General told this consultant that the definition in the Societies Ordinance would be the operative one: National Security means the safeguarding of the territorial integrity and the independence of the PRC

However, the text of the Consultation Document contains references to ‘sovereignty, territorial integrity, unity and security.’

Article 23 of the Basic Law itself provides a much wider framework:

“The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.”

Should this latter wording provide the basis for what constitutes a legitimate national security interest, it infringes both the Johannesburg Principles and the ICCPR.

4. CONCLUSION

As has already been pointed out, prosecutions under national security laws are more often politically motivated. The legislation proposed under Article 23 provides the Hong Kong Government with every possible legal opportunity to bring charges if and when it chooses or is required to do so. The repeated statement that the laws will only very rarely be implemented is both naïve and disingenuous. Laws once on the statute books exist to be used, or misused, precisely at times when the greatest possible transparency is needed.[viii]

The many and overlapping proscriptions on freedom of expression, whether this be in speech, print, electronic means or actions, taken together create a formidable barrier to the free flow of information. At the very least, the array of laws proposed in the Consultation Document will exercise a chilling effect on freedom of expression by the introduction of ambiguity and uncertainty. Self-censorship, by definition difficult to monitor, will certainly increase. At worst, legitimate public interest information put into the public domain by conscientious journalists could result in charges leading to imprisonment.

The Consultation Document on Article 23 therefore presents a deeply worrying intention on the part of the Hong Kong Government to ensure almost absolute control of information. This, experience repeatedly teaches us, is the first step towards tyranny.

The Opinion given by Mr David Pannick QC (October 2002) on Proposals to implement Article 23 of the Basic Law concludes that the proposals are broadly compatible with Articles 27 and 39 of the Basic Law, which protect human rights. These latter Articles spell out the conformity with the provisions of the ICCPR. However, it should be noted that the margin of appreciation allowed to governments in the ICCPR on matters of national security is wide and open to restrictive interpretation. This is precisely why the Johannesburg Principles were drawn up.

The Opinion also introduces cautions and admits that, “there is always the possibility that the legislation could be misapplied to particular facts.” Mr Pannick, in several instances indicates that the proposals as set out in the Consultation Document are difficult to judge in the abstract and recommends that it must be up to the Courts to interpret and apply the law within a particular context. (see, for example, paragraphs, 4, 5, 6,9, and especially paragraph 13).

The Opinion emphasises that the human rights protected under BL 27 and 39 cannot be overridden and recommends the inclusion of a ‘savings provision’ indicating that any restrictions under Article 23 “apply only in so far as they are lawful pursuant to the Basic Law.” Finally, the Opinion notes that although there were no objections to the proposals in human rights terms, “the manner in which the proposed laws were implemented was a separate matter, and all powers could in theory be exercised in a manner that was disproportionate. If that were to occur, the Courts have ample powers to ensure that the provisions are interpreted and applied consistently with Articles 27 and 39 of the Basic Law.”

In view of the Opinion, a White Bill is essential if the details of the proposed legislation are to be scrutinised

The fact that not all the proposed legislation set out in the Consultation Document has been included in this brief report should not be taken to mean that the remaining provisions concur with the Johannesburg Principles. The agreement with the Secretary for Security was that only the most egregious examples of deviation from the standards set out in the Johannesburg Principles would be examined.

Dr Frances D’Souza CMG

London – December 2002.

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[i] Proposals to implement Article 23 of the Basic Law. Consultation Document published by the Security Bureau in September 2002.

[ii] Notably, Selina Chow, Miriam Lau and James Tien.

[iii] They have, for example, been endorsed by the UN Special Rapporteur for Freedom of Expression, the Organisation of American States (OAS) Special Rapporteur for Freedom of Expression, the Organisation for Security and Co-operation in Europe (OSCE) Media Director, used in reference by the UN Commission on Human Rights Resolutions in 2000, and quoted in over 700 academic, legal and other texts. The Lima Principles, based on the Johannesburg Principles, form the basis of access to information laws in Peru, 2002.

[iv] See for example, The HKJA Submission to Legco on Article 23 Offences; the Amnesty International Response to Hong Kong SAR Government Consultation Document on proposals to implement Article 23 of the Basic Law; the Hong Kong Human Rights Monitor Response to Government Consultation Document ‘Proposals to Implement Article 23 of the Basic Law; the seven pamphlets published by the Article 23 Concern Group.

[v] The HK Government has already indicated that it might be prepared to drop this clause.

[vi] Note that the ICCPR includes the words ‘.. advocacy that constitutes incitement’ thereby confusing the issue. The Johannesburg Principles are based on the widespread acknowledgement that ‘Advocacy’ and ‘Incitement’ are entirely distinct activities, conceptually as well as in practice.

[vii] The Secretary for Security and the Deputy Solicitor General announced that Freedom of Information legislation was in their ‘blueprint’.